Originally Posted by ”AVAV8R”
Further they made it quite clear that Vilven/Kelly was not precedent-setting so therefore none of the future litigants can appeal to VK as precedental. Because Canadian jurisprudence is based on Stare Decisis, precedental law, that is a huge setback for future litigants.
I believe that you are not reading the words in the decision correctly. It did not say that the VK decision was not "precedent-setting" so therefore none of the future litigants can appeal to VK as precedent. The decision said that the decision was not a "
legal precedent," meaning, I would infer, that it is a non-binding precedent, not that it is
not a precedent.
I will leave it up to the lawyers to labour over the proposition that this decision is not a
legal precedent, but from my lay point of view the implications of that finding should come from the person who decides
the next case, not from the person that decided
this one. It will be up to later Tribunal panels to decide whether or not to follow the decision.
Frankly, to a layman the proposition that the case does not represent a "
legal" (i.e. non-binding) precedent does make some sense. But that should not stop another Tribunal from deciding the outcome of the next case on the basis of the same reasoning followed in this case, or from even crediting this case as precedent if the essential facts and issues in the next case are identical. I believe it only means that the next Tribunal is not
required to follow this decision.
The interpretation that this decision does not represent a "precedent" at all does not make a lot of sense. Can't any decision from any tribunal be a precedent if the decision is followed in subsequent cases? Wasn't the August 2009 decision a precedent in that it marked the first time that the Tribunal refused to uphold the prior case law permitting mandatory retirement? This case marks the first time that this collective agreement provision has not been upheld. Can the same collective agreement provision be contrary to the
Human Rights Act in this case, but not in the next? I doubt it.
If the Tribunal's statement was intended to imply that subsequent Tribunals could not cite this decision as precedent (albeit, non-binding) it would not surprise me if the Tribunal is wrong on that point. That wouldn't be the only error in the decision, however. The award of damages payable by an "interested party" (as opposed to a "respondent") to a complainant (ACPA to Vilven) is an embarrassment to the Tribunal.
If Air Canada loses the
Thwaites case ("normal age of retirement") should it make the same assumption, namely that
that case as well is not a precedent, and that it should therefore recklessly continue its policy of terminating the employment of pilots at age 60, without regard to the potential adverse consequences? Only at the risk of allowing the damages payable to continue to mount, in the desperate hope that it can now overturn
both decisions on appeal.
Moreover, is there any implication anywhere in this decision or the prior one that would lead anyone to suspect that any of the litigants in the queue will not eventually be reinstated with full seniority, with full rights under the collective agreement and with substantial damages, with interest payable to the date of their award, just as Vilven and Kelly were? If there is, I didn’t see it.
Contrary to what you suggest, I don't see this decision as being a huge setback to the future litigants because it is likely to be mooted very soon in either or both of the decisions that are pending, especially the Federal Court decision. If the Federal Court upholds the Tribunal’s August, 2009 decision that the violation of the
Charter by the mandatory retirement exemption in the statute is not justified under Section 1 of the
Charter, that will end mandatory retirement for everyone in the federal jurisdiction, including all of the future litigants. That decision will be a legal precedent.